# Marriott Corporation, Plaintiff-Counter-Defendant-Appellee v. Dasta Construction Company, Defendant-Counter-Claimant-Appellant

> Court of Appeals for the Eleventh Circuit · July 22, 1994 · 26 F.3d 1057

URL: https://www.frixlaw.com/law-library/cases/9486874

## Case

- **Full name:** MARRIOTT CORPORATION, Plaintiff-Counter-Defendant-Appellee, v. DASTA CONSTRUCTION COMPANY, Defendant-Counter-Claimant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** July 22, 1994
- **Citations:** 26 F.3d 1057; 1994 U.S. App. LEXIS 18294; 1994 WL 320982
- **Precedential status:** Published
- **Opinion:** Dissent by Paine
- **Judges:** Tjoflat, Dubina, Paine
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9486874

## How later opinions describe it (automated extraction)

- holding that contractor could not recover damages over the lump-sum contract price because the contract contained provisions imposing risk of loss on contractor and an express “no damages for delay” provision
- holding that a construction contractor’s damages-for-delay claim against the owner was barred by the failure to give notice within 7 days as required by the contract

## Opinion text

PAINE, Senior District Judge,
dissenting:
I agree with the majority’s holding that the trial court properly interpreted the no-damages-for-delay clause of the contract. I join the majority and would affirm on this issue if it were the only issue before this court for consideration. However, because the issue of whether Dasta has established a recognized exception to enforcement of the no-damage-for-delay clause is also before the court, I cannot concur with the majority opinion. It fails to address the exception.
I dissent from the majority opinion because the majority affirms the district court’s entry of judgment notwithstanding the verdict which was based in part upon the finding that there was insufficient evidence to support the jury’s factual conclusion that Marriott deliberately interfered with Dasta’s performance. The majority does not address the issue of deliberate interference with Das-ta’s performance, which would constitute a legally permissible exception to the enforcement of the no-damages-for-delay clause against Dasta. Rather, the majority holds that it is unnecessary to determine whether Marriott actively interfered with Dasta’s performance, because, as a preliminary matter, Dasta failed to request an extension of time, as required by the contract’s no-damage-for-delay clause. 1 In my opinion, the majority’s *1072 holding that the district court correctly found that Dasta failed to seek its contractual relief of an extension of time is not determinative of this entire case. 2 The majority’s conclusion on this single issue does not obviate its duty to review the district court’s entry of judgment notwithstanding the verdict on the issue of the exception, wherein the district court substituted its version of the facts for the jury’s verdict that Marriott deliberately interfered with Dasta’s performance under the contract. The real issue of contention with the majority opinion is that the undersigned would hold that the exceptions recognized by Florida law take Dasta’s right to recover damages outside of the contract and do not require Dasta to make a written request for extension of time in order to recover damages. Therefore, Dasta’s failure to comply with the contractual requirements regarding delay does not bar recovery for damages caused by deliberate interference. While the majority contends that my position would frustrate the bargained-for agreement of the parties, I maintain that the majority’s position frustrates Florida law which does not require a written request for an extension of time in order to recover damages for deliberate interference.
Legal Analysis
The Jury’s Verdict on Liability Should Stand
The subject contract contained an enforceable no-damages-for-delay clause which, as the majority correctly notes, limited Dasta’s remedy under the contract to an extension of time and further prohibited Marriott’s liability to Dasta for money damages sustained as a result of delays occasioned by Marriott. 3 However, it is well settled in Florida that a no-damages-for-delay clause does not preclude recovery for delays resulting from a party’s fraud, concealment, or active interference with performance under the contract. See United States for the Use and Benefit of Seminole Sheet Metal Company v. SCI Inc., 828 F.2d 671 (11th Cir.1987); C.A. Davis, Inc. v. Miami, 400 So.2d 536 (Fla. 3d Dist.Ct. App.1981), pet. for review dismissed 411 So.2d 380 (Fla.1981); McIntire v. Green-Tree Communities, Inc., 318 So.2d 197 (Fla. 2d Dist.Ct.App.1975). Therefore, even where a contract contains a no-damage-for-delay clause, money damages may be awarded upon a showing of “knowing delay” which is sufficiently egregious, see Southern Gulf Utilities Inc. v. Boca Ciega Sanitary District, 238 So.2d 458 (Fla. 2d Dist.Ct.App.) cert. denied, 240 So.2d 813 (Fla.1970), or upon a showing of willful concealment of foreseeable circumstances which impact timely performance. See McIntire v. Green-Tree Communities, Inc., 318 So.2d at 199 . As noted by this Circuit in Seminole Sheet Metal, these valid exceptions to the no-damages-for-delay clause are consistent with and predicated upon a contracting party’s implied promise not to hinder the other party’s ability to perform its contractual obligation. Seminole Sheet Metal, 828 F.2d at 675 .
*1073 Therefore, while no-damages-for-delay clauses are enforceable under Florida law, Florida also recognizes certain exceptions to their enforceability. Where, like in the case before us, facts and circumstances constituting an exception exist, the no-damages-for-delay clause is rendered unenforceable. Despite the bar to enforcement created in this case by the well recognized deliberate interference exception, the majority mistakenly enforces the terms of the no-damages-for-delay clause to Dasta’s detriment and in such a way so as to preclude the applicability of any recognized exception to the clause’s enforceability. In my opinion, the majority’s failure to consider the applicability of the deliberate interference exception is error.
On this issue, the majority holds that “where a legitimate request for an extension is made and subsequently refused, a no damages for delay clause will not bar recovery where the delays were caused by the owner’s fraud, concealment, or active interference with performance.” [emphasis added to call attention to that portion of the holding with which I take issue]. In support of this legal conclusion, the majority cites Seminole Sheet Metal and Southern Gulf Neither case supports this holding. 4 Specifically, neither ease requires as a condition precedent to recovery pursuant to a legally recognized exception to the enforcement of a no-damages-for-delay clause, that a complaining party make a “legitimate request for an extension.” In Southern Gulf, the court noted that a contractor seeking to overcome the damages prohibition of such a clause cannot “sit idle,” but the court fell short of requiring that any formal request for an extension was required in order to prevail under the “knowing delay” exception. 5 Southern Gulf, 238 So.2d at 459 . Accordingly, neither case cited by the majority holds that in order for Dasta to recover pursuant to the deliberate interference exception, it was required to seek an extension through written notice. This was required of Dasta only if it sought recovery through the contract itself. 6
Notwithstanding Dasta’s failure to request a written extension of time as required by the very clause which is rendered unenforceable by the recognized exception and the facts of this case, I believe it is necessary to determine whether the record supports the jury’s finding that Marriott actively interfered with Dasta’s performance, thereby creating an exception to enforcement of the clause against Dasta. 7 Accordingly, I am *1074 constrained to dissent from the majority opinion and to review the district court’s order accordingly.
Upon proper instruction of the above-referenced law, the jury determined as a matter of fact that Marriott deliberately interfered with Dasta’s performance, thereby causing delay/acceleration or impact damages. Notwithstanding the jury’s factual findings, the district court held that the facts of this case do not support a claim of concealment, fraud, or active interference. For the following reasons I cannot agree that the record before us supports the majority’s affirmance of the district court’s substitution of its own judgment for the verdict of the jury.
The district court may grant a judgment notwithstanding a verdict if the record reveals either (a) an absence of substantial evidence supporting the jury’s verdict, or (b) substantially undisputed and uncontroverted evidence supporting only a legal conclusion contrary to the result reached by the jury. Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525 (11th Cir.1989).
Upon de novo review of this record, I cannot agree with the district court that the record lacked substantial evidence to support the jury’s verdict. Marriott’s six month failure to erect a safety net in accordance with federal regulations, its failure to expeditiously resolve problems with the defective concrete work upon which Dasta was to construct exterior skin, and its failure to either timely provide adequate vertical transportation as promised or to permit Dasta to supply its own vertical transportation, not only deliberately hindered Dasta’s performance but effectively made it virtually impossible for Dasta to commence work as scheduled in July, 1984. Each of these facts, standing alone, constitutes substantial evidence to support the jury’s finding of deliberate interference. When they are viewed collectively, they surely constitute knowing delay which is sufficiently egregious to support the jury’s verdict. Both this conclusion and the jury’s verdict are further supported by the unreasonable and undue delay occasioned by Marriott’s bad faith failure to timely address and cure the problems causing the initial delay. Accordingly, I would reverse the district’s court’s entry of judgment notwithstanding verdict in favor of Marriott on the deliberate interference claim, and I would direct the district court to enter judgment in favor of Dasta as to this liability issue.
Reinstatement of the Jury’s Verdict on Damages Would Be Erroneous
In this appeal, Dasta also seeks reinstatement of the jury’s verdict. Notwithstanding my foregoing conclusions regarding liability, I hold that reinstatement of the jury’s damage verdict would be erroneous. Upon finding that Marriott deliberately interfered with Dasta’s performance, the jury made the following findings regarding damages: 1) there was a contract balance owed by Marriott to Dasta of $2,452,311.00; 2) that Marriott paid to subcontractor’s and suppliers on Dasta’s behalf $369,402.02; 3) that Dasta was entitled to recover on its delay/acceleration/impact claim $2,207,079.90. 8 Contending that the jury’s interrogatory verdict was hopelessly inconsistent and that such inconsistencies could not be resolved without resorting to speculation, Marriott alternatively requested a new trial. I agree that the verdict is hopelessly inconsistent and I would further hold that the verdict is contrary to the great weight of the evidence, thereby warranting a new trial on the issue of damages.
*1075 The jury verdict identifies $2,452,311.00 as “the amount of unpaid contract balance that Dasta is entitled to recover.” However, Das-ta’s own Exhibit 182 and its testimony regarding the final accounting of its contracts with Marriott was that the contract balance was $217,358.49. 9 Clearly, no basis exists in the record to support the jury’s verdict regarding the amount owed by Marriott to Dasta under the contracts and the jury verdict is, therefore, contrary to the great weight of the evidence.
Further, as noted above, despite the jury’s attempted delineation of separate amounts of damages as requested in the interrogatory verdict form, both parties suggested that the two separate figures — the amount of damages due under the contracts and the amount due from the delay/aeceleration/impact claim — should not be added together to determine the total amount due to Dasta from Marriott. Apparently urging the court to simply ignore the jury’s award of damages on the delay/aeceleration/impaet claim, Dasta suggested that the amount of the verdict should be $2,452,311.00, the amount the jury erroneously deemed to be due and owing to Dasta under the contracts, plus pre-judgment interest. Dasta’s attempt to tailor the verdict in this way would require speculation as to the jury’s intent and would further require that this court give effect to a verdict which is clearly not supported by record evidence. Marriott’s suggestion that the sums not be added together is an equally arbitrary attempt to reconcile an obviously inconsistent verdict.
It would appear from the verdict form that the jury mistakenly totalled sums for each claim and then duplicated the award of damages on each claim. However, because neither this court nor the district court has any way of knowing what amount the jury attributed to each claim or how exactly it arrived at these inconsistent and factually unsupported verdicts on damages, I would remand the matter to the district court to hold a new trial on the issue of damages. Ard v. Southwest Forest Industries, 849 F.2d 517, 520 (11th Cir.1988) (a new trial may be granted where the jury verdict is contrary to the great weight of the evidence or will result in a miscarriage of justice).
. Because the majority thought it was unnecessary, it did not undertake an analysis of the deliberate interference exception to enforcement of the no-damages-for-delay clause. However, while the majority opinion does not provide an analysis of this issue, a close reading of the opinion reveals that it does offer a conclusion with respect thereto. Specifically, the majority concludes:
Our analysis of the contract documents in this case leads us to the inescapable conclusion that Dasta has no claim, under those documents, for the injuries it purportedly suffered at the hands of Marriott. Our analysis of the evidence leads us to the identical conclusion: Dasta has no claim under any of the theories or recovery it advances, [emphasis added]
While I agree with the former conclusion, I cannot agree with the latter because I conclude that Dasta has a claim under at least one of the theories it advances, to wit, it may recover pursuant to the legally recognized deliberate interfer *1072 ence exception. The majority's holding is especially troublesome because its stated version of the facts fully support Dasta's argument that it may recover damages pursuant to this exception. Even the majority acknowledges that because we are reviewing the propriety of the district court's entry of judgment notwithstanding the verdict, we accept as true Dasta’s version of the events.
. I maintain that the contractual provisions including General Condition 7B should not bar Dasta from recovery pursuant to the non-contractual entitlement to damages for deliberate interference. Proof of this exception does not require, and in my opinion it would be illogical to require, that a party who is the victim of deliberate interference seek from the deliberate interferer, an extension of time in writing in order to recover damages for deliberate interference with its performance under the contract. By the very nature of the exception, Marriott's deliberate interference was impeding Dasta’s performance of its obligations under the contract. Therefore, in my view, it is unfair to hold, as the majority does, that Dasta could not recover damages for Marriott's deliberate interference because it had not fully performed its obligations under the contract.
. I do not take issue with the majority's conclusion that Dasta’s failure to request an extension of time prohibited it from avoiding the barrier to recovery of damages for delay pursuant to the no-damages-for-delay clause. However, as stated in greater detail, infra, I do not agree with the majority's legal conclusion that the lack of a legitimate request for an extension of time prohibits Dasta’s recovery of damages pursuant to the recognized exceptions to the enforcement of a no-damage-for-delay clause.
. In Seminole Sheet Metal, this court did not even address the need for a request for an extension or a notice requirement of any kind, or compliance with the terms of the clause as a condition precedent to recovery pursuant to a recognized exception.
. It cannot be said that this record supports a finding that Dasta sat idly by while Marriott caused delays. In addition to the abundant verbal discussions regarding Dasta’s concern regarding the delays, the record reveals that Dasta made several attempts to expedite and cure the cause of at least some of the delays. In particular, upon discovery of the concrete problem, Das-ta suggested that it undertake to cure the problem long before Marriott asked it to do so; Dasta also asked permission to supply its own vertical transportation to avoid the delays occasioned by Marriott's failure to provide same.
. The majority suggests that my approach would have encouraged Dasta to remain silent about the delays and sue at a later time. This is not an accurate statement of my position, Florida law, or the facts of this case. As I acknowledged, supra, Florida law does not permit a complaining party to sit idly by and simply sue later. See, Southern Gulf, 288 So.2d at 459. However, Florida law does not require that a complaining party seek a written extension of time in order to recover for deliberate interference. Additionally, as noted supra at note 4, the facts of this case establish that Dasta did not remain silent about the delays.
.On this issue, the undersigned located only one case in this Circuit where the court determined that a ruling on the preliminary issue of enforceability of the clause, obviated the need to address the possible application of the exception to enforceability. In United States f/u/b/o Pertun Constr. Co. v. Harvesters Group, Inc., 918 F.2d 915, 920 , a case discussed by the majority only on the preliminary issue of enforceability of the clause and not to justify its failure to address the exceptions thereto, the party seeking to enforce the no-damages-for-delay clause had not fulfilled a contractual duty and the party seeking to avoid the prohibition of the clause was entitled to recover under the clause itself, thereby obviating the need to address the exceptions to enforceability. However, as the majority acknowledged in note 18, Pertun is plainly distinguishable from the present case on it facts. In Pertun, having determined that the party against whom the no-damages-for-delay clause was being enforced was entitled to recover damages under the clause itself, the court appropriately did not address the *1074 right to recover pursuant to the recognized exceptions. In the present case the majority contends that Dasta's lack of abilily to recover under the clause itself, precludes its recoveiy under any of the recognized exceptions. Because a recognized exception is established under the present set of facts, whether Dasta is entitled to recover under the clause itself is not determinative inasmuch as the exception renders the clause unenforceable against Dasta.
. Judgment was thereafter entered by the clerk in favor of Dasta for $4,289,989.28 plus interest from June 1, 1986 in the sum of $2,967,502.60, for a total amount of $7,257,491.88. Dasta moved for a correction of the judgment due to a clerical mistake which Dasta contends was made by erroneously adding together the $2,452,-311.00 which the jury found to be the unpaid contract balance, and the $2,207,079.90, the amount of damages the jury found due and owing on the delay/acceleration/impact claim. Marriott agreed that the two figures were mistakenly added together.
. As correctly noted by the majority, the parties do not dispute that Dasta was entitled to $509,-358.49 that was left unpaid on its contracts with Marriott. Also undisputed is the fact that Dasta expressly authorized Marriott to reduce the amount owed under the contracts to reflect the $292,000 in payments that Marriott made directly to Dasta subcontractors and suppliers. Thus, both parties agreed that the final amount left owing on the contracts totals $217,358.49.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9486874. Public record. Not legal advice.